Posted on 05/13/2005 8:11:11 AM PDT by azhenfud
There is debate continuing to surface over America's Fourteenth Amendment's guarantee that everyone born on U.S. soil be granted U.S. citizenship. Many have resolved it among themselves, having been misguided by unwilling lawmakers claiming there is nothing that can be done to deny illegal aliens the opportunity to complicate their deportation procedures with the birth of what is commonly known as "anchor babies".
This idea is however, false, predicated upon the fact politicians and lawmakers dare not appear to "evict" a "citizen" from these United States and that America is also too "compassionate" to do so. Although the Fourteenth Amendment appears clear in its requiring subjugation to U.S. law, that may possibly be in fact, an area of contention with illegal aliens.
Children of illegal aliens are minors in the care of legal guardian(s) not subject(s) of that same law. Since many illegal aliens, if they have knowledge of that "right", will appeal to the Consular's offices of their respective countries when the first need arises, such exception may and should be taken to exclude those "anchor babies" from U.S. citizenship eligibility. Let's look at the matter in more simplistic terms comparable to what's happened to the Second Amendment, the right to keep and bear arms. In doing so, we may determine how restrictions on eligibility for citizenship at birth may be enacted.
Federal and state laws have been enacted which restricted, modified, and in some cases even denied the constitutional right to bear arms with government touting such measures as a protection for U.S. citizens. They have, in fact, "denied" and "revoked" that right to some, limited the possession of arms types "in excess", required the registration of those who've exercised that right, and even placed restrictions as to how that right is exercised by making concealed weapons and mere possession of some types unlawful. All these restrictions and exceptions were placed upon a constitutionally guaranteed right to keep and to bear arms.
Now, if the legislatures of both federal and state governments had a desire to stop illegal aliens from complicating the normal legal process of deportation, provisions requiring at least one parent to document their legal residency at the time of applying for a child's birth certificate should be enacted immediately. Those lacking that documentation could be issued provisional certifications differing in appearance from those of legal residents' or citizens'. Such measure would help assure those "anchors" remaining eligible for deportation along with the illegal parents.
Restrictions on the constitutional "right" of citizenship have equal legitimacy as do restrictions on the constitutional "right" to keep and bear arms. The time to clarify may be needed now more than ever before.
I returned home to have my son. :)
I understand that you didn't write this article; however, it's not, as you say, "pretty good." It's wrong. Wrong as it can be.
Let's pick a citation, shall we? How abnout Plyer v. Doe, which the author claims stands for the proposition that there is no birthright citizenship for unlawful aliens. He cites footnote 10. I reproduce it here in whole:
In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction." [FN10]
[fn10]Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.' " Id., at 687, 18 S.Ct., at 471.
Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id., at 693, 18 S.Ct., at 473. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).
Not only does footnote 10 not stand for what he says, it implies the exact opposite! It implies that there IS birthright citizenship for illegal aliens, and it darn near outright says that there is!
All right, let's pick another cite. The Wong Kim Ark case, which appears to be the leading case on the subject. He says that this case stands for the notion that there is no automatic birthright citizenship. WRONG. From the case:
By the civil rights act of 1866, 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,' were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, 'not subject to any foreign power,' were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the fourteenth amendment of the constitution, to the affirmative words, 'subject to the jurisdiction of the United States.' 169 US 649, 689.
Again, from the same case:
The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance **474 and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. 169 US 649, 693.
Note that it doesn't distinugish between legal and illegal aliens: it says resident aliens--that means a person that is HERE. In the United States. Indeed, from later in the same case: "The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship....The fact, therefore, that acts of congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: 'All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'" 169 US 649, 703-4.
Elk v. Wilkins, which the author mentions, is taken misused and taken out of context. Elk was a case about an Indian--who was born on tribal lands--NOT the United States. Indian tribes are separate nations; the person in question was NOT born in the United States. Simple as that.
Anyhow, I could go on and on. This author is wrong, and he's so wrong it leads me to believe that he is intentionally lying to try to bolster his case. Sorry; you'll have to come up with something better than this article to convince me that the plain language of the amendment means something different than what it says.
I really don't even know where to begin because you are so wrong.
Are you actually saying that the Federal Government has no power outside the District? You seem to say this. Are you seriously saying that? Are you saying, then, that Congress has no power to construct, say, post roads outside the District? Lay taxes outside the District? Impose duties outside the District?
If you are saying this, it's a pretty interesting theory of government that certainly wasn't theorized by any of the founders. Even under the Articles of Confederancy, which almost everyone (save maybe Patrick Henry) thought were too weak to sustain a federal government, the Congress had more power than what you claim it does.
I'm afraid you're just making an unsupportable argument. From the very beginning, Congress was exercising more power than what you claim it has--1791, for instance, Congress establishes the Bank of the United States; Congress passes a Whiskey Tax, which resulted in a rebellion that had to be put down by Washington. What about the Alien and Sedition Acts, passed by Congress? Certainly exercised jurisdiction outside the district. Attacked on constitutional grounds for certain, but free speech grounds, not jurisdictional grounds. Louisiana Purchase? Unconstitutional, you claim? What about the ban on slave importation outside the District? Unconstitutional? If you think that so, then why does Section 9 of the First Article imply that Congress has such power?
From the First Congress, the United States was regulating outside the district. Your argument just isn't supported by history, I'm afraid.
(sigh)
"The constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests."
--Patrick Henry
__________________________________________________________
"When all government, in little as in great things, shall be drawn to Washington as the Center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."
– Thomas Jefferson
__________________________________________________________
"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, not merely from the date of the decision branding it?"No one is bound to obey an unconstitutional law and no courts are bound to enforce it."
6 Am Jur 2d, Sec 177, late 2d, Sec 256.
__________________________________________________________
One of the sources frequently quoted by the Founders:
THE SPIRIT OF LAWS Book VI By Charles de Secondat, Baron de Montesquieu
Of the Simplicity of Criminal Laws in different Governments
In republican governments, men are all equal;
equal they are also in despotic governments:
in the former, because they are everything;
in the latter, because they are nothing.
__________________________________________________________
The only jurisdiction outside of Washington DC that the government has are those SPECIFICALLY enumerated in the Constitution concerning the states.
When the Constitution says 'the States', it MEANS the states.
NOT a geographical landmass OR the people....the artificial creation or 'political subdivision' known as a 'state'.
So again, does that mean post roads? Does that mean the ability to lay and collect taxes or duties? Does that mean the ability to purchase land?
Although your quotes are of little note, I do notice that you quote Patrick Henry, who, of course, was not present at the Constitutional convention. As he was not a participant in the drafting of the document, his thoughts on the subject are of little value in discussing the framers' intention. Thomas Jefferson was likewise not present.
Anyway, you're wasting your breath arguing this. For 225 years, the rules have been clear. I'm sorry, you lose. Accept it, move on.
Odd, you create a post asking a question, then not only refuse to discuss it, you won't listen to anything that contradicts the position you've ALREADY decided on.
So...let's just cut to the chase.
Go to your nearest friendly Judge or Lawyer and ask to see a copy of the *published rules for criminal prosecution under statutory jurisdiction*
THEN will talk.
I'll be happy to discuss it until you're blue in the face, but you're saying something that just plain doesn't make sense with the text of the document.
I absolutely agree that Congress has exclusive jurisdiction over the District and military forts and whatnot, but all that means is that no state has the power to regulate in these areas. That's it. It does NOT mean that Congress's power is LIMITED to these areas. Indeed, Congress has been doing it for the past 225 years.
I agree that Congress has to have an enumerated power on which to hang its hat, but once it has one of those powers, it can do as it chooses. Want to build a post road in a state? It can do it--witness U.S. highways. Want to prohibit the importation of slaves? No problem. Want to pass laws regulating commerce amongst the states? Check.
All of this happens outside the District, yet Congress continues to pass laws...strange, considering you seem to think that they are all unconstitutional.
Just as an aside, next April, don't pay your taxes and then challenge the law claiming that the Federal government doesn't have the power to lay and collect taxes outside the District.
Tell me how that works out. On the bright side, I think you get free postage when you're in prison. You can write to me for free!
However our elected officials take it upon themselves to spend our tax dollars on such non profitable ventures as paying for illegal aliens' birthing.
While our own citizens are handed a big screw job and expected to not only pay for their own medical care, but pay again for the indigent parasites when their own country doesn't give a care about them."
You nailed it!
Governor Mike Huckabee of Arkansas, has encouraged ILLEGAL pregnant women to seek FREE prenatal care so they will have a healthy, happy baby, courtesy of the taxpayers.
OTOH, yesterday I spoke with a Arkansas resident, who was working retail and she needs an operation. She told me that she will have to take out a loan for her surgery, since her husband lost his job and she has no health insurance.
BUT ILLEGALS need no health insurance...This is a disgrace and a slap in the face to US Citizens.
sw
So WHY did the Founders spent such a massive amount of time, effort and blood to write the Constitution?
Do you honestly believe it was written to restrict the STATES?
Want to pass laws regulating commerce amongst the states?
Okay. When you see the phrase 'commerce between the states', do you think of it;
1. as the PHYSICAL flow of merchandise across a geographical land mass
or
2. the act of the ARTIFICAL creations known as *states* doing business with one another?
(The distinction is extremely important.)
All of this happens outside the District, yet Congress continues to pass laws...strange, considering you seem to think that they are all unconstitutional.
If they fall outside the restrictions placed on the federal government by the Constitution, the ARE unconstitutional. The central government was created BY the states to regulate a few, enumerated duties.
The distinction I'm trying to make is the fact that the Constitution is a positive law contract, and has to do with the government....NOT the people.
The Founders wouldn't have pledged their lives, fortunes and sacred honor just to turn around and recreate what they just defeated...would they?
No. The Founders, wise men that they were, realized that our world is composed of 2 types of ‘worlds’
The natural world... The physical world that consists of people, plants, the earth, etc., and the Positive world...the artificial world we create for ourselves, consisting of society, government, etc.
EACH ONE OF THESE WORLDS HAS IT’S OWN KIND OF *LAW*, AS WELL AS IT'S OWN CORRESPONDING TYPE OF *PERSON*:
Black's Law Dictionary ;
"natural person" : A human being, as distinguished from an artificial person created by law.
"artificial person" : An entity, such as a corporation, created by law and given certain legal rights and duties of a human being.
Noah Webster, the man personally responsible for Art. I, Sec. 8, ¶ 8, of the U. S. Constitution, explained two centuries ago:
The duties of men are summarily comprised in the Ten Commandments, consisting of two tables; one comprehending the duties which we owe immediately to God-the other, the duties we owe to our fellow men.
The Ten Commandments are two sets of laws. Enforcement of the first 5 remains only in God's purview. The LAST 5 Commandments were laws between men AND punishable BY man. Breaking one of these 5 Commandment is what defines *crime*
This is what is known as Natural Law, or the law of Nature and nature's God of the Declaration of Independence.
Don't believe me when I say we currently have two types of law??
Find an online LEGAL dictionary, and look up *Natural law* and *positive law*.
The positive/Natural law system is what makes us a *Republic*!
If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.
John Adams, Rights of the Colonists, 1772
Fascinating info.....just curious if you draw a distinction between a state citizen and fed'l citizen and how does one become a 14th Amendment fed'l citizen? Been to meetings where this has been discussed at length and the prevailing thought it's through birth certificates, SS #, etc.
Been to meetings where this has been discussed at length and the prevailing thought it's through birth certificates, SS #, etc.
Personally, I believe acquiring a SS # creates what is called a 'legal entity' or artificial 'person'.
Kind of hard to do legally though since the SS application is missing the three necessary ingredients for a legally binding contract....
knowledge (did you KNOW you were creating a legal entity?), consent(did you consent to this creation of a legal entity?), or full disclosure (were you told what would happen after you created a legal entity?).
As a natural person, we have rights
(from Nolo.com)
natural person
A living, breathing human being, as opposed to a legal entity such as a corporation. Different rules and protections apply to natural persons and corporations, such as the Fifth Amendment right against self-incrimination, which applies only to natural persons.
As a *legal* entity, we ARE and HAVE nothing except what government grants us.
To properly understand the intent of the 14th Amendment, we can go to the words of Sen. Jacob Howard, the co-author of the citizenship clause, who said:
"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Encyclopædia Britannica Article
Page 1 of 1
IN LAW, a person's DWELLING place as it is defined for purposes of judicial jurisdiction and governmental burdens and benefits.
One entry found for reside.
Main Entry: re·side Pronunciation: ri-'zId Function: intransitive verb Inflected Form(s): re·sid·ed; re·sid·ing Etymology: Middle English, from Middle French or Latin; Middle French resider, from Latin residEre to sit back, remain, abide, from re- + sedEre to sit -- more at SIT 1 a : to be in residence as the incumbent of a benefice or office b : to dwell permanently or continuously : occupy a place as one's LEGAL domicile 2 a : to be present as an element or quality b : to be vested as a right - re·sid·er noun
3 : not migratory
Imagine that. A person is considered a resident of a place, if it's their LEGAL domicile.
I guess that leaves illegal aliens out, doesn't it?
You're not a resident, if you're migratory according to Webster's? Geez, what could they be thinking? Seriously, how could you believe that a legal document, like the Constitution, wouldn't be concerned with one's legal residence or legal domicile?
"U.S. soil" includes each of the 50 states, the possessions, territories, ie. Puerto Rico, Guam, etal, AND every single USA embassy, not just the territory of Washington, D. C.
The powers-that-be have allowed the misreading of Amendment XIV to occur in much the same way that they have changed the definition of WIC. That origially meant "Women and Infant Children," the Libs expanded it to mean "Women, Infants and Children," thus increasing their welfare base.
In some circles, the artificial (corporate?) person is considered a "strawman" that is the alter ego of the living breathing natural soul and whenever there's any interaction between gov't entities and the natural soul most correspondence is addressed to the strawman (in all caps) who the living soul mistakenly believes is him/her. All such correspondence is considered an "offer of contract" whether it's a tax notice, letter from the city about the length of the grass, etc. Whenever this offer of contract is ignored or thrown away the addressee falls into "dishonor" and then the 3rd party attorneys are pressed into action.....then the fight begins.
The commerce clause is the first: the physical flow of merchandise across state borders.
By the way, I never said the Constitution wasn't a restriction on the government; it most certainly is, but it creates a federal government in the process, and its limits are not so narrowly defined as you wish them to be. Never have been, never will be.
The Founders decidedly did not re-create what it just defeated. It's different in several key ways, not the least of which is a notable elimination of parliamentary supremacy, but in other ways, it is very similar to the British common law system. After all, the common law was largely retained by the states, we have a bi-cameral legislative body, a quasi (at least before the 17th amendment) noble upper house, etc. There is no question that the American system was based on the British.
But again, you're travelling far afield of the original discussion--the powers of the federal government. And you are notably loathe, understandably, to categorize this jurisdiction, mostly, I imagine, because it your view of the world is so far removed from reality (of this century or any previous) to seem absurd.
As I mentioned way back in one of my first posts, there was a very real debate before the Civil War on whether there was such a thing as United States citizenship. It was well settled that state citizenship existed, but each state could determine for itself who was citizens--mostly it was white people born in the state, or white people domiciled in the state. If there were United States citizens, they were only citizens by the virtue of state citizenship; I am a citizen of Virginia, thus, I am a US citizen.
The citizenship clause of the 14th Amendment was intended to settle the debate. It was to create (if it did not already exist) United States citizenship and ensure that rights associated with citizenship could not be eliminated by the states--thus the need for the second P&I clause and Section 5 of the amendment. Think of it as a correction of the originial document not to provide a Congressional enforcement power for the P&I clause.
In the law, domicile means the place at which a person intends to permanently live. The residence is a place at which the person is currently living.
For instance, then, if your son or daughter was away at school out of state and intended to return home upon graduation, they would be domiciled in his home state but their residence would be in the state in which he was attending school.
While I admit that the different sources that the author chose are somewhat sloppy in distinguishing between domicile and residence, it is still largely irrelevant; most illegal aliens, I would imagine, come across the border fully intending to stay in the United States permanently; thus, any place in which they are living would be considered their domicile.
Moreover, that argument is sort of missing the forest for the trees, don't you think? This is the best that the author of the essay can come up with? Blatantly wrong citations? Misleading the reader?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.